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Select Committee on Foreign Affairs Appendices to the Minutes of Evidence

APPENDIX 12

Memorandum from the Center for Constitutional Rights, New York

THE DETENTION OF BRITISH NATIONALS IN GUANTÁNAMO BAY, CUBA

INTRODUCTION

1. Since the terrorist attacks of September 11 2001 and the subsequent military operations in Afghanistan, over six hundred individuals, including seven British nationals, have been detained by the United States government in Guantánamo Bay, Cuba and classified as "enemy combatants". The detainees have not been charged, tried or given access to lawyers. This memorandum summarizes the very grave concerns raised by this situation, and the legal efforts in the United States, United Kingdom and international courts to challenge it. As legal remedies are proving increasingly unsuccessful for the detainees, political or diplomatic efforts British and other governments appears to be the only manner in which their position might be addressed.

AFFILIATION

2. I write this memorandum as an Attorney and President of the Center for Constitutional Rights ("CCR"). CCR is a non-profit legal and educational organization dedicated to advancing and protecting the rights guaranteed by the United States Constitution and the Universal Declaration of Human Rights. CCR has been at the forefront of the campaign against the rollback of civil liberties by the United States government since the terrorist attacks of September 11, 2001. As part of this work we are co-counsel in cases before the US Federal Court and the Inter-American Commission on Human Rights on behalf of the Guantaánamo detainees, including the British nationals. We have also been monitoring the legal challenges related to the Guantaánamo situation which have been brought in the British and other courts. I have been assisted in writing this memorandum by Henrietta Hill, a Barrister from Doughty Street Chambers in London, who has been a Fellow at CCR for the last three months, before returning to her practice in the UK.

FACTUAL BACKGROUND

3. On September 11, 2001 members of the al Qaida terrorist network attacked the United States. Shortly thereafter, United States armed forces were deployed in Afghanistan to debilitate the al Qaida terrorist network and the Taliban regime that allegedly harbored it .[96] As part of this effort, the United States provided military assistance to the Northern Alliance, a loosely knit coalition of Afghani and other military groups opposed to the Taliban. In the course of those military operations the United States with the assistance of the Northern Alliance captured or secured the surrender of a large number of individuals. Since around January 11, 2002, several hundred of these have been transferred by the United States military to Camp X-Ray, part of the United States Naval Base in Guantaánamo Bay, Cuba. Individuals who may well not be enemy combatants have also been seized from areas other than the battlefield in Afghanistan or Pakistan, and from areas further afield such as Bosnia, and taken to Guantaánamo.

4. The United States has occupied Guantaánamo since 1903 under a lease continued in effect by a 1934 Treaty .[97] Under this lease the United States maintains "complete jurisdiction and control" over the base. It has repeatedly declared its intention to remain there indefinitely, while resisting claims of national sovereignty made by Cuba over the area. The Naval Base is a self-sufficient and essentially permanent city with approximately 7,000 military and civilian residents, occupying nearly 31 square miles of land (an area larger than Manhattan and nearly half the size of the District of Columbia). It has its own schools, generates its own power, provides its own internal transportation, and supplies its own water. It has developed into a fully American enclave with all the residential, commercial and recreational trappings of a small American city. Offenses committed by both civilians and foreign nationals living in Guantaánamo are brought before Federal Courts on the mainland, where defendants enjoy the full panoply of constitutional rights. Guantaánamo has been described by the United States Navy as "for all practical purposes. . . American territory"[98].

5. As at October 28, 2002 official figures indicated that there were 625 detainees at Guantaánamo, representing 42 nationalities, including seven who are British.[99] At least one detainee who is a US national, Yaser Esam Hamdi, has been removed from Guantaánamo and transferred to US soil. He is currently being held incommunicado in an American military prison.[100] Official figures also indicate that 150 individuals remain in the custody of the United States in Afghanistan, although the total of these figures does not account for the "thousands" of individuals the United States asserts it has taken control of during the hostilities.[101]

6. Although the United States will not release the names or nationalities of specific prisoners, I know the following about the British detainees. Shafiq Rasul (acting via his mother Skina Bibi as Next Friend) and Asif Iqbal (via his father Mohammed Iqbal) are petitioners in Rasul et al v. Bibi et al. ("Rasul"), a habeas corpus application filed in the United States District Court for the District of Columbia. David Hicks (via his father, Terry Hicks) and Mamdouh Habib (via his wife Maha Habib), Australian citizens detained in Guantaánamo and the co-petitioners in the case.[102] CCR and other US-based lawyers are working with Gareth Peirce of Birnberg Peirce Solicitors in London on this case. Ferroz Ali Abbasi and Zumrati Zaitun Juma are the claimants in R (on the application of Abassi & Anor) v. Secretary of State for Foreign and Commonwealth Affairs and Secretary of State for the Home Department, an attempt by judicial review proceedings in the British High Court to compel the Foreign Secretary to make further representations or other appropriate action on the detainees' behalf, or at least explain why this has not been done. Louise Christian of Christian Fisher Khan Solicitors represents Mr Abbasi and Mr Juma[103].

7. In Rasul, the United States' government has claimed that the individuals detained in Guantaánamo were fighting as part of the al Qaida terrorist network or to support, protect or defend the al Qaida terrorists[104] . For their part, all the petitioners in Rasul state that they are not, and never have been, enemy aliens or unlawful combatants; that they have never been members of al Qaida or any other terrorist group; had not prior to their capture committed any violent act against any American person or property; had no involvement, direct or indirect, in the terrorist attacks on September 11, 2001 or any other act of international terrorism; and had no military or terrorist training. Rather, they state that they were visiting Pakistan or Afghanistan entirely innocently when they were captured at some point in early December 2001[105]. The United States has itself acknowledged that at least "some [of the detainees] were `victims of circumstance' and probably innocent"[106]. Other leaked reports to the press suggest that many of the detainees are low and middle-level fighters and supporters of al Qaida, not the more senior members who may know enough about the group's workings to provide information about its cell-based structure[107].

8. Since gaining control of the detainees, the United States military has held them virtually incommunicado. They have been or will be interrogated repeatedly by agents of the United States Departments of Defense and Justice, though they have not been charged with an offense, nor have they been notified of any pending or contemplated charges. They have made no appearance before either a military or civilian tribunal of any sort, nor have they been provided with counsel or the means to contact counsel. Ms Peirce set out in the Rasul petition the efforts she had made to seek access to Mr Rasul and Mr Iqbal in order to provide them with legal advice, but how these requests had been refused. Their ability to contact their families has been severely restricted. For example, messages which Mr Rasul sought to pass to his family via the Red Cross were intercepted by the United States, who only permitted a summary to be passed to his mother, indicating that he was well, and wished to have legal representation. Attempts by their Members of Parliament to secure greater access to them by their families have failed. The detainees have not been informed of their rights under the United States Constitution, the regulations of the United States Military, the Geneva Convention, the International Covenant on Civil and Political Rights, the American Declaration on the Rights and Duties of Man, or customary international law. Indeed, the United States has taken the position that the detainees should not be told of these rights, or indeed the lawsuits pending on their behalf.

9. There are very grave concerns at the manner in which the detainees have been treated. We understand that detainees Iqbal, Rasul and Hicks were kept blindfolded and sedated against their will for lengthy periods while they were taken involuntarily to Guantaánamo.a On arrival, they were forced to provide involuntary statements to United States' agents. Since then, they have been held under conditions which violate their international and constitutional rights to dignity and freedom from cruel, unusual and degrading punishment. They have been kept in cells measuring 2.5 metres by 2 metres (8ft by 6ft 8in) which do not have proper walls. They have been forced to use a bucket for a toilet, and have not been provided with basic hygienic facilities. They are given just two 15-minute exercise sessions a week. They have not been provided with the opportunity fully to exercise their religious beliefs. They are also subjected to regular interrogations. They have been exposed to the indignity and humiliation of the cameras of the national and international press, brought to Guantaánamo with the express consent and control of the United States government. Anyone who has seen them has been under instructions not to tell them even where they are being held. Part of Mr Abbasi's complaint before the High Court was also that he was unfairly interrogated by British security service officials without legal representation and in violation of international law[108]. About 200 inmates temporarily staged a hunger strike in the spring of 2002, and US military authorities have said that 30 other incidents of "self-harm" have been registered, four of which were suicide attempts. The conditions of detention have been decried by the International Red Cross and other humanitarian groups.

10. According to evidence submitted in Abbasi, officials of the Foreign and Commonwealth Office and members of the security services have been permitted to visit the detainees on three occasions, between 19 and 20 January, 26 February and 1 March and 27 and 31 May 2002. They state that by the time of the last visit, they were satisfied that he was being well treated and appeared to be in good health. By that stage facilities had been purpose built to house detainees and each was in an individual cell with air ventilation, a washbasin and a toilet. It was not argued in the subsequent legal proceedings on Mr Abbasi's behalf that he was not being treated humanely[109]. Even if these improved conditions now also apply to the petitioners in Rasul, this does not detract from the inhumane treatment they initially received.

11. The United States Government proposes to try terrorism suspects before military tribunals with grossly distorted standards of criminal jurisprudence. The right to choose an attorney, to have a jury trial and to appeal will all be eliminated under the proposed tribunal system, in which the death penalty will be available[110]. Ad hoc military tribunals of this nature have been unauthorized by various human rights Conventions since World War II. Article 102 of the Third Geneva Convention requires prisoners of war to be tried by the same court as would be used for domestic soldiers, namely court martials; civilians are of course entitled to regular criminal trials. Both of these would have significantly greater protections than would be available under the tribunals proposed by the United States. There is no reason at this stage for confidence that this grossly unfair criminal medium and the risk of the death penalty might not be imposed on the British detainees.

12. There continue to be new arrivals at Guantaánamo. 30 more people, the status of whom remains completely unclear, were flown from Afghanistan to Guantaánamo on October 28, 2002 and the United States has recently announced the opening of 204 new cells in addition to the 612 cells already in place[111]. It has previously described Camp X-Ray as "work in progress" and that there are plans to build "a more permanent prison exactly in accordance with federal prison standards"[112].

13. The only detainees released from Guantaánamo so far are a mentally ill inmate who was returned to Afghanistan on May 1, 2002 and four detainees (two of whom were over 80 years old) who were returned to Afghanistan and Pakistan on October 28, 2002. Officials have stated that the detainees were released after investigators concluded they had little information of value either to US intelligence or to prosecutors, and that there was little risk they would take up arms again upon their release. CCR believes that had fair procedures been applied to these individuals, namely access to a tribunal to review their detention, they would have been released many months earlier, as it would have been apparent that they posed no risk. Aside from individuals released in this way, the United States has said that it has "no choice" but to detain the prisoners in Guantaánamo as long as "the conflict" or "their capabilities and intentions continue"[113].

Legal issues arising from the Guantaánamo detentions and attempts to litigate them

14. There have been widespread expressions of concern, both within and outside the United States, in respect of the stand the Bush administration is taking in relation to Guantaánamo. CCR, like many other organizations, believes that the United States' actions with regard to the Guantaánamo detainees manifests numerous violations of domestic and international law. In particular, we believe that (i) the detentions are unlawful, arbitrary and indefinite contrary to the Fifth and Fourteenth Amendments of the United States Constitution and customary international law, specifically Articles 9 and 14 of the International Covenant on Civil and Political Rights, and Articles 18, 25 and 26 of the American Declaration on the Rights and Duties of Man[114]; and (ii) that the detainees' rights as persons seized in times of armed conflict, as established under, inter alia, the regulations of the United States Military, Articles 4 and 5 of Geneva Convention III, Geneva Convention IV, and customary international law have been violated. We also believe that the ancient writ of habeas corpus should be available to the detainees to challenge their detention.

15. There have been various attempts to challenge the Guantaánamo detentions via legal proceedings, but for the reasons which follow, the United States' actions in regard to each of these means that the prospect of the detainees seeking redress through the law is diminishing rapidly.

(i) The United States is disregarding the international law requirement to refer the issue of the legal status of the detainees to a competent tribunal

16. The most fundamental issue relating to the Guantaánamo detentions is that the United States has unilaterally determined the legal status of the detainees, and created a status for them hitherto unknown, and from which, according to the United States, no legal rights flow.

17. It classifies the detainees as "enemy combatants" being held "in accordance with the laws and customs of war", and asserts that this does not afford them a right to counsel or the courts to challenge their detention, which protections would only be triggered if and when a detainee is charged with a crime. It specifically does not accept that the detainees are "lawful combatants", entitled to prisoner of war status under humanitarian law, namely the Third Geneva Convention 1949, on the basis that "Taliban detainees....have not conducted their operations in accordance with the laws and customs of war...al Qaida is an international terrorist group and cannot be considered a state party to the Geneva Convention..."[115]. Prisoner of war status would mean that the detainees had to be released at the end of the hostilities unless they were charged with a war crime or crime against humanity. By denying them this classification, the United States opens up the possibility that their detention may be indefinite. At this stage we simply do not know how each of the detainees should be classified. As we know so little about their circumstances, there is a real risk that some of them are not "combatants" of any kind.

18. However, what we do know is that an independent, competent tribunal—and not the United States government—must make this determination. According to international norms applicable in peacetime and wartime, such as those reflected in Article 5 of the Third Geneva Convention and Article XVIII of the American Declaration of the Rights and Duties of Man, a competent court or tribunal, as opposed to a political authority must be charged with ensuring respect for the legal status and rights of persons falling under the authority and control of a state. Such a tribunal would effectively decide whether humanitarian law, which governs times of armed conflict (as opposed to international human rights law, which applies at all times), is applicable to the detentions.

19. It was on this basis that on March 12, 2002 the Inter-American Commission on Human Rights ordered the United States to adopt precautionary measures, namely to have the legal status of the Guantaánamo detainees determined by a competent tribunal. This was in response to a petition which CCR had filed with other concerned organizations such as the Columbia University Law School Human Rights Clinic, some three weeks previously. The Commission accepted that there may well be doubts as to the legal status of the detainees (including the question of whether and to what extent the Third Geneva Convention and/or other provisions of international humanitarian law apply to some or all of the detainees and what implications this may have for their international human rights protections), but nevertheless held that absent any clarification of the issue, "...the rights and protections to which they may be entitled under international or domestic law cannot be said to be the subject of effective legal protection by the [United States]". Accordingly, the precautionary measures ordered were both "appropriate and necessary". In reaching this decision, the Commission reflected the statement made by the United Nations High Commissioner for Human Rights on 16 January 2002, that the legal status of the detainees, and their entitlement to prisoner of war status, if disputed, must be determined by a competent tribunal.

20. Members of the Organization of American States (of which the Commission is the legal branch) such as the United States are subject to an international legal obligation to comply with a request for such precautionary measures[116]. However, alarmingly, the United States has not complied with this order in relation to the Guantaánamo detainees. Instead, the Bush administration by a letter to the Commission dated April 11, 2002 denied that the Commission had jurisdiction over the United States and argued that it had illegitimately applied international law beyond the scope of the Organization of American States Charters and Treaties. It relied on the argument that the detention was pursuant to the "President's authority as Commander in Chief" in times of war. After a further exchange of comments, on July 23, 2002 the Commission reiterated its view that "...the nature and extent of the rights afforded to the detainees remains entirely at the discretion of the US government...[and]...this is not sufficient to comply with the United States' international obligations". The United States has given no indications that it intends to change its position.

(ii) The United States has at present succeeded in arguing that as the detainees are held in Guantaánamo they are outside the jurisdiction of any United States Court

21. On February 19, 2002, CCR and co-counsel filed the habeas corpus application in Rasul (in which two of the petitioners are British—see above), on the basis of the various violations of domestic and international law set out above. We also sought to challenge a Military Order which President Bush has issued authorizing him to detain without trial those who he has reason to believe are members of al Qaida, or in other ways involved in terrorism[117], on the basis that it violates the fundamental rights set out above; contravenes Article I of the United States Constitution to the extent that it seeks to suspend the writ of habeas corpus; and exceeds the scope of the Joint Resolution of Congress dated September 18, 2001. However, contrary to what we had understood to be the case, the United States indicated in the proceedings that the petitioners were not being detained pursuant to this Order, but to the "President's authority as Commander in Chief". The same appears to be true of Mr Abbasi and Mr Juma[118].

22. On 18 March 2002 the United States government applied to dismiss our habeas petition in Rasul on jurisdictional grounds, inter alia, that (i) as they were aliens being held in Guantaánamo, they were outwith the jurisdiction of the District of Columbia Court, or any United States court; and (ii) the detention involves political questions about the conduct of the war on terrorism which the court should not consider.

23. On 30 July 2002, considering itself bound by Johnson v. Eisentrager, 339 U.S. 763 (1950) and its progeny, the District Court ruled that the military base in Guantaánamo is outside the sovereign territory of the United States and, because of this, and the fact that the petitioners were aliens, the Court had no jurisdiction to consider their claims. The position would have been different had they been American citizens[119]. We have appealed the decision in Rasul to the United States Court of Appeal for the District of Columbia Circuit, and oral argument in the case is due to take place on December 2, 2002. Whatever the outcome of the appeal, though, it is likely that a petition for certioriari will almost certainly be filed with the Supreme Court.

24. The present position, therefore, is that the United States courts are denying jurisdiction over Guantaánamo and any ability to review the status of the detainees, including the Britons. Despite being held in an area which is under exclusive American jurisdiction and effective control, on which no foreign government had jurisdiction and in which no foreign courts can intervene, the detainees have therefore been excluded entirely from seeking the assistance of the American courts. For its own part the British Court of Appeal in Abbasi stated that it "...found it surprising...that the writ [of habeas corpus] of the United States courts does not run in respect of individuals held by the government on territory that the United States holds as lessee under a long term treaty"[120], but that is the stance which the United States government has persuaded the courts to adopt.

25. What is perhaps more worrying is that the District Judge in Rasul appeared to have accepted, and been influenced by, the United States government's assurance at oral argument that "there's a body of international law that governs the rights of people who are seized during the course of combative activities", as she stated at the end of her Opinion that it "...should not be read as stating that these aliens do not have some form or rights under international law.."[121]. This is a concern when viewed in the light of the United States disregard for what that body of international law—in the form of the ruling of the Inter-American Commission on Human Rights, and views of the United Nations High Commissioner for Human Rights—has directed it to do.

26. CCR's broader concerns are that if accepted this argument means that individuals could be detained indefinitely, at the detention of the executive, without any access to the courts, and that this could extend not only to detainees abroad but to domestic suspects. Since the detentions are not taking place within the checks and balances of the criminal justice system, this amounts to a suspension of the writ of habeas corpus and a further example of an overwhelming concentration of power in the hands of the President.

(iii) The attempt in the British courts to compel the Foreign Secretary to take further steps on behalf of the detainees recently failed

27. The Abbasi case was an attempt by judicial review proceedings to pressure the Foreign Secretary to intervene more forcefully on behalf of him and the other detainees. This was put on the basis that the Foreign Office was not reacting appropriately to the fact that they was being arbitrarily detained in violation of his fundamental human rights. The Court was invited to direct that the Foreign Secretary was under a duty to take all reasonable steps to require the United States government to release Mr Abbasi or to return him to the custody of the United Kingdom, or to bring him before a competent tribunal and to permit him to have access to his lawyer. It was argued that in the discharge of this duty the Foreign Secretary should make diplomatic representations to the United States authorities as appropriate to achieve these ends.

28. The Court made a clear finding that "...in apparent contradiction of fundamental principles recognised by both jurisdictions and by international law, Mr Abbasi is at present detained in a `legal black hole'....and [w]hat appears to us to be objectionable is that Mr Abbasi should be subject to indefinite detention in territory over which the United States has exclusive control with no opportunity to challenge the legitimacy of his detention before any court or tribunal". This was a matter of "deep concern" to the Court, which it appeared to hope would be conveyed to the appellate courts of the United States[122].

29. However, the Court felt it could not order the Foreign Secretary to do more than consider Mr Abbasi representations for assistance, which had been done. It would not, for example, be appropriate for the Court to order the Foreign Secretary to make specific representations to the United States, "even in the face of what appears to be a clear breach of a fundamental human right", because of the impact this would have on the conduct of foreign policy at a particularly delicate time.

30. The reluctance of the British court to direct diplomatic activity on behalf of the detainees is in contrast to the decision of the Human Rights Chamber of Bosnia and Herzegovina delivered on 11 October 2002, in Boudellaa, Lakhdar, Nechle and Lahmar—v—Bosnia and Herzegovina and The Federation of Bosnia and Herzegovina[123].

31. We do not yet know whether the Abassi decision will be appealed, but at present the British courts have considered themselves unable to do more than give their admittedly damning view of the illegality of the detentions, and have not compelled the Foreign Secretary to act in a particular way.

RECOMMENDATIONS

32. It is clear from the above that the ability of the detainees to challenge their detention through any kind of legal medium is looking increasingly bleak. Further it is clear that in denying the jurisdiction of the United States courts to the detainees in Rasul, the Judge was influenced by the fact that "diplomatic channels remain an ongoing and viable means to address the claims raised"[124]. Accordingly we would urge the British Foreign Secretary to:

— Communicate to the United States government the substance of the findings of the British the Court of Appeal in Abbasi as to the nature of the detentions.

— Pressure the United States government to:

— Have the legal status of the detainees determined by a competent tribunal;

— Comply with rulings of the Inter-American Commission on Human Rights;

— Permit the detainees access to their families and attorneys;

— Inform the detainees of their rights under the Geneva Convention;

— Inform the detainees of the lawsuits pending on their behalf;

— Undertake that, to the extent that any of the British detainees are to be tried, they will not be tried by ad hoc military tribunal but by regular courts.

To the extent that the Foreign Secretary is not going to do these things, a statement to this effect would be pertinent information to place before the Rasul court on appeal.

Center for Constitutional Rights

New York

8 November 2002